CFI 015/2019 Musaab Tag Elsir Abdelsalam vs Expresso Telecom Group LTD

Claim No: CFI 015/2019

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

MUSAAB TAG ELSIR ABDELSALAM

Claimant

and

EXPRESSO TELECOM GROUP LTD

Defendant

ORDER OF H.E JUSTICE ALI AL MADHANI

UPON reviewing the Claimant’s claim form dated 20 March 2019 (CFI-015-2019) (the “Claim”)

AND UPON reviewing the Defendant’s application dated 30 June 2019 for the Claim to be dismissed and for the Claimant’s Particulars of Claim to be struck out (CFI-015-2019/1) (the “Immediate Judgment Application”)

AND UPON reviewing the Claimant’s application dated 7 August 2019 for permission to amend his Particulars of Claim (CFI-015-2019/2) (the “Amendment Application” and with the Defendant’s Application the “Applications”)

AND UPON hearing the parties at the hearing on 29 September 2019

IT IS HEREBY ORDERED THAT:

The Defendant’s Immediate Judgment Application is dismissed.

The Claimant’s Amendment Application is granted.

The Claimant is granted 20 days to amend his Particulars of Claim.

The Defendant and the Claimant are each to pay their own costs of the Amendment Application.

The Defendant is to pay the Claimant’s costs of the Immediate Judgment Application.

Issued by:
Nour Hineidi
Deputy Registrar
Date of Issue: 10 March 2020
At: 12pm

SCHEDULE OF REASONS

Introduction

1. The Claimant, Mr. Musaab Tag Elsir Abdelsalam (henceforth the “Claimant” or “Mr. Abdelsalam”), issued proceedings in this Court against the Defendant, Express Telecom Group Ltd (henceforth the “Defendant” or “Express”; together with the Claimant the “Parties”), on 20 March 2019. He alleged various breaches of contractual obligations by Express pursuant to three employment agreements (the “Employment Agreements” or the “First,” “Second” or “Third Agreement”)). The value of the claim, he said, was AED 1,034,979. The causes of action, he submitted, arose under various provisions of “DIFC No. 6 of 2018 being the Employment Law.” The only problem for Mr. Abdelsalam, however, was that the document which he invoked was only a draft of the DIFC’s then-forthcoming Employment Law – it had not yet been enacted (the “Draft Employment Law”). The DIFC Courts have been dubbed “the Courts of the future,” but no one it seems had taken this description more literally than the Claimant.

2. There are now two applications before the Court – an application issued by each of the Parties. Regarding the first, the Defendant applies for immediate judgment against the Claimant – the Immediate Judgment Application. Along with the issue of Mr. Abdelsalam’s reliance on the Draft Employment Law (the “First Ground of the Immediate Judgment Application”), Express further submits that, in any case – and even more fundamentally, I think – the Claimant was neither an employee nor sufficiently connected to the DIFC for the purposes of the in-force DIFC employment law, being DIFC Law No. 3 of 2012 (the “In-Force Employment Law”) (the “Second Ground of the Immediate Judgment Application”). Moreover, the Defendant submits that the Claimant’s claims in relation to two out of three of the Employment Agreements are time barred (the “Third Ground of the Immediate Judgment Application”). The First Agreement, it submits, terminated on 31 August 2010 and the Second Agreement terminated on 31 July 2012, while Article 38 of DIFC Law No. 10 of 2004, being the DIFC Court Law (the “Court Law”), provides that “[subject] to any other DIFC Law, a proceeding must not be commenced more than 6 years after the date of the events that give rise to the proceedings.” In deciding each Ground of Express’ Immediate Judgment Application, regard must be had, of course, to the test found at RDC 24.1 which provides, as material:

The Claimant’s responses to the Immediate Judgment Application will be outlined below.

3. Regarding the second application, the Claimant simply seeks permission to amend his Particulars of Claim, replacing references to the Draft Employment Law and its Articles with references to the In-Force Employment Law and the relevant in-force Articles – the Amendment Application. The Defendant’s response to the Amendment Application will be provided below, too.

The First Ground of the Immediate Judgment Application and the Amendment Application

4. If the Claimant is successful on his Amendment Application, the Defendant will be unsuccessful on the First Ground of the Immediate Judgment Application and vice versa. It makes sense, therefore, to consider both the Amendment Application and the First Ground together. To proceed, after issuing his claim, the Claimant soon realised his error in invoking the Draft Employment Law, but not before the Defendant had. In the latter’s Statement of Defence filed on 2 June 2019, Express submitted: “The Claimant has based his relief on Articles 18, 19, 64 and 65 of the proposed DIFC Employment Law of 2018 which currently does not exist.” Unsurprisingly, three weeks later, the Defendant made an application to the Court seeking for all the Claimant’s claims to be dismissed on the same basis. The Claimant followed this application with one of his own, dated 7 August 2019 and seeking permission, pursuant to RDC 18.14, to amend his Particulars of Claim. As stated above, Mr. Abdelsalam wanted to change references from the Draft Employment Law to the In-Force Employment Law and to change references from Articles 18, 19, 64 and 65 to the relevant in-force provisions. In response, the Defendant stated that it “vehemently objected” to the Claimant amending his Particulars of Claim. Along with various remarks about the merits of the Claimant’s case generally – which in my regard are irrelevant to the question of amending pleadings – the Defendant took the position that “the Court cannot exercise its suo moto powers in remedying this fatal flaw, as the Court is itself rendered helpless when faced with the prospect of having to deal with a law that has not yet assumed force.”

5. The Defendant is incorrect. As David Williams J said in International Electromechanical Services Co. LLC v (1) Al Fattan Engineering LLC and (2) Al Fattan Properties LLC [2012] DIFC CFI 004 at [31]:

“This Court has jurisdiction to amend any defects or errors in the pleadings on its own initiative, if such is necessary for determining the real controversy between the parties. This jurisdiction is found in arts 32(f) and 44 of the DIFC Courts [sic] Law (DIFC Law No 10 of 2004).”

Article 32(f) of DIFC Law No. 10 of 2004 being the DIFC Court Law (the “Court Law”) provides:

The DIFC Court has the power to make orders and give directions as to the conduct of any proceedings before the DIFC Court that it considers appropriate, including:

(f) orders made in the interests of justice.

For its part, Article 44 of the Court Law provides:

6. In my view, an incorrect reference to a law does not invalidate proceedings and is no reason to strike out a claim. Moreover, in the instant matter, the Claimant has not persisted in his error and, instead, seeks to rectify it – this stands in his favour. The real controversy between the parties, as Williams J put it, will not be determined by references in pleadings but rather, primarily, events which occurred between the parties and their legal relationship and the law as they in fact were when these events occurred. To set aside Mr. Abdelsalam’s Claim on the basis of his error would be to take a severely technical approach in dealing with the case and would not, in my view, be in the interests of justice. Furthermore, RDC 18.12 provides:

Questions of amendment, and consequential amendment, should wherever possible be dealt with by consent. A party should consent to a proposed amendment unless he has substantial grounds for objecting to it.

The Defendant has failed to demonstrate substantial grounds for objecting to the Claimant’s application to amend his Particulars of Claim. Without such grounds, Express should have consented to Mr. Abdelsalam’s application, but it did not. And importantly, I do not think that the Defendant has demonstrated that the Claimant has no real prospect of succeeding on his Claim in respect of the First Ground. As such, I am unable to come to any conclusion other than that the Claimant’s Application to amend his Particulars of Claim should be granted and the Defendant’s Application for Immediate Judgment under the First Ground should be denied. I grant the Claimant twenty days to amend his Particulars of Claim.

7. However, it must be noted that the Claimant had filed his case in an unsatisfactory manner. For example, while RDC 17.44 requires a party making an allegation to clearly identify any legislative provisions on which he makes the allegation and the basis of its application, in his Particulars of Claim, Mr. Abdelsalam did not, of course, properly comply with this requirement. His references to the (Draft) Employment Law and DIFC Law No.7 of 2005, being the Law of Damages and Remedies, were not sufficient. And in the absence of such clearly identified provisions and their intended application, the Claimant’s claims can be said to be vague and not pleaded with particularity. This, I think, has made a notable contribution to the delay in the instant proceedings until the hearing of 29 September 2019. Moreover, rather than seeking the Defendant’s consent for him to amend his Particulars of Claim, the Claimant proceeded to issue an application to the Court. Conceivably, less costs could have been generated if the Claimant had sought the Defendant’s consent before a court order. As such, rather than awarding the Claimant the costs of the Amendment Application on the basis that he is the successful party, I think the Claimant’s conduct should be reflected in an alternative portioning of costs. In my view, the Claimant should pay his own costs of the Amendment Application. (The costs of the First Ground of the Immediate Judgment Application will be dealt with together with the Second and Third Grounds.)

The Second Ground of the Immediate Judgment Application

8. There were other questions around the Claimant’s Claim. More fundamental than the issue of the correct employment law in the DIFC was the question of whether Mr. Abdelsalam’s was even an “employee” or, indeed, whether he was based within, or ordinarily worked within or from the DIFC, for the purposes of the In-Force Employment Law. This question is the subject of the Second Ground of the Immediate Judgment Application. As material, Article 4 of the In-Force Employment Law provides:

As such, for the In-Force Employment Law to apply to Mr. Abdelsalam, he needs to establish that he is an employee of an establishment having a place of business with the DIFC and that he was based within, or ordinarily worked within or from, the DIFC. There is no dispute that Express is a DIFC establishment. Dispute, instead, centres, again, on whether Mr. Abdelsalam was an employee and whether he was based within, or ordinarily worked within or from, the DIFC.

9. Regarding the Claimant’s status as an employee or otherwise for the purposes of the In-Force Employment Law, the Defendant submits that the services that he provided were more akin to consultancy rather than employment, while, it avers, under DIFC Law a consultant would not fall within the definition of an employee. In the instance of a grievance, the Defendant submits, a consultant might have a claim under the DIFC laws relating to contracts, but not under the laws relating to employment.

10. Regarding the location consideration, the Defendant submits that the third condition requires an employee to be physically present within the DIFC and ordinarily working from a DIFC establishment, while, it says, the Claimant has never ordinarily worked within nor from the DIFC; something, it submits, that can be proved from the Claimant’s own submissions. In particular, the Defendant draws attention to the Claimant’s Reply to the Statement of Defence in which the Claimant listed various travels undertaken by him between February 2009 and June 2014 as well as images of pages of his passport filed which show exit and entry stamps from various countries. Most noteworthy in this regard is the fact that, while the Claimant travelled to and from Dubai numerous times, he never spent more than six months in the Emirate. In fact, he rarely spent more than one or two months in Dubai. The Defendant submits that the Claimant was in fact employed by the Defendant’s head office, Sudatel Telecom Group (“Sudatel”), based in Khartoum, Sudan, where he repeatedly travelled to. The Defendant says his other travels were presumably undertaken in pursuance of his work with Sudatel and that, as a simple matter of fact, Mr. Abdelsalam was predominantly outside the DIFC and did not “ordinarily” work from it. As such, Express submits, the provisions of the In-Force Employment Law do not apply to Mr. Abdelsalam.

11. For his part, and regarding the issue of whether he was an employee for the purposes of the In-Force Employment Law, the Claimant argues that this Law does not differentiate between categories of workers. Any type of “employee,” he submits, is entitled to the same rights and benefits as regular full-time employees. He adds that the Defendant is registered in the DIFC and had purchased an office within the DIFC before the Claimant was hired by the Defendant, but, as the office was not delivered on time by the developer, all the Defendant’s employees in the UAE worked from its office in Saba 1, Jumeirah Lake Towers (“JLT”), Dubai, instead. But crucially, Mr. Abdelsalam submits, the Defendant remained a DIFC registered company and, therefore, subject to DIFC laws.

12. On the location point, the Claimant argues that on a true construction of Article 4 of the In-Force Employments Law, which includes the words “from the DIFC” as juxtaposed to “within the DIFC,” the provision is broad enough to include those who ordinarily work for a DIFC establishment but without physically contacting the DIFC in completion of the relevant work. The Claimant concludes that his work, which he concedes was mostly conducted from the JLT office, satisfies the requirement set out in Article 4 of the In-Force Employment Law.

13. In my view, the issues of whether the Claimant was an employee and whether he worked from the DIFC require the submission of evidence and the presentation of detailed arguments. I do not think that these issues can or should be determined on a summary basis at this early stage in the proceedings. They are better suited to being dealt with at trial, once all relevant evidence has been furnished by the Parties. The Defendant, therefore, has failed to demonstrate that the Claimant has no real prospect of succeeding on his Claim in relation to the matters raised in the Second Ground of its Immediate Judgment Application. As such, the Second Ground of the Application is dismissed.

The Third Ground of the Immediate Judgment Application

14. Even if the Court was of the view that the Claimant was an employee and sufficiently connected to the DIFC for the purposes of the In-Force Employment Law, still, the Defendant submits, the Claimant’s claims in relation to the First and Second Agreements are time barred by Article 38 of the Court Law, cited above, which provides proceedings must not be commenced more than six years after the date of the events that give rise to the proceedings. Express says Mr. Abdelsalam had until 2016 and 2018 to file claims in relation to the First and Second Agreements, respectively, which terminated, again, on 31 August 2010 and 31 July 2012, respectively. The claims under each of these contracts, then, Express submits, are “grossly time barred.” Express concedes, however, that Mr. Abdelsalam’s claim under the Third Agreement is not time barred by Article 38 of the Court Law.

15. In response, the Claimant submits that he has been pursuing the Defendant regarding his alleged labour rights from termination until issuing proceedings in the DIFC Courts. To substantiate this position, Mr. Abdelsalam has produced correspondences as well as evidence of phone calls and meetings between himself and the Defendant’s management. Moreover, the Claimant submits that he had sent a Legal Notice through the Dubai Notary Public in both Arabic and English to Express’ legal compliance team in accordance with provisions of the Employment Agreements to the Defendant on 22 March 2018 to which he received a response and a promise to be provided with complete feedback.

16. For me, that the Claimant’s claims under the First and Second Agreements may be time barred is not a good reason for immediate judgment with respect to those claims. As the Claimant has submitted, he sent a Legal Notice through the Dubai Notary Public to the Defendant’s legal compliance team on 22 March 2018, to which the Defendant promised a response. This, in my view, may be a step that could amount to commencing proceedings for the purposes of Article 38 of the Court Law and, as such, may be of significance with respect to the Second Agreement in particular. The Defendant has not dealt with this point and therefore has not entered a defence as to why the Claimant cannot rely on this Notice to bring his claim under the Second Agreement. Moreover, the remedies sought by the Claimant under the Agreements are almost identical and so I do not think there is reason for this Court to act fast in dropping from the proceedings two out of three Agreements. The cases under each of the Agreements, I think, should be fully pleaded and all the relevant evidence should be furnished before a decision as to the validity of the claims under them should be made. It is not insignificant in this regard that the Claimant is a litigant in person and so it is not inconceivable that he has still not articulated his case according to its most appropriate form. In my view, therefore, the Defendant has not sufficiently demonstrated that the Claimant has no real prospect of succeeding on his claim in respect of the matters raised under the Third Ground of the Immediate Judgment Application if it is allowed to proceed to trial. It follows that the Third Ground of Express’ Immediate Judgment Application is dismissed and, in turn, that the Application fails in its entirety. Express is to pay Mr. Abdelsalam’s costs of this Application on the standard basis, to be assessed by a Registrar if not agreed.

Conclusion

17. The Claimant has succeeded on his Amendment Application and the Defendant has failed on its Immediate Judgment Application. For the reasons given above, however, the Parties are to bare their own costs of the first Application while the Defendant is to pay the Claimant’s costs on the standard basis of the second.